Environmental Court of Vermont 

State of Vermont 

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 E N T R Y R E G A R D I N G M O T I O N 

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In re Northeast Kingdom Community Action, Inc. 

 (appeal from ZBA conditional use approval) Docket No. 123-6-07 Vtec 

 (appeal from Planning Comm. site plan approval) Docket No. 128-6-07 Vtec 

 (appeal from ZBA denial of zoning permit appeal) Docket No. 152-7-07 Vtec 

Project: NEKCA Preschool Education & Family Services Center 

Applicant: Northeast Kingdom Comm Action, Inc. 

Title: Motion to Amend 9/23/2008 Order, No. 11 

Filed: October 2, 2008 

Filed By: Appellants Paul and Joan Curtis 

Response filed on 10/06/08 by Appellee NE Kingdom Comm. Action, Inc. 

Opposition 

___ Granted _X_ Denied ___ Other 

In their motion to amend, Appellants request that the Court revise 

its September 23, 2008 Entry Order, so as to allow Appellants to assert 

“Other Questions” not specifically asserted in their original Statements 

of Questions in each of the above Dockets. For the reasons stated below, 

the Court declines to revise its prior Entry Order.

Each of Appellants’ Statement of Questions was originally filed 

fourteen or more months ago. Our Rules require that an appellant file 

their statement of questions “within 20 days after the filing of the 

notice of appeal.” V.R.C.P. 5(f). The Rule further provides that an 

“appellant may not raise any question . . . not presented in the statement 

as filed . . ..” Id. 

Appellants argue that the questions they seek to add to their 

appeals are merely clarifications of questions generally raised in their 

original Statements. Our review of the Statements of Questions in each 

Docket leads to a different conclusion. The original Questions upon which 

Appellants now rely state broad challenges to the municipal approvals now 

being challenged; one such example is found in Question #10 in the 

earliest Docket: “Were significant bylaws overlooked in the conditional 

use approval.” This and the other original Questions upon which 

Appellants rely provide no notice to this Court or the other parties of 

the specific Questions Appellants now seek to add to these appeals, some 

fifteen months after these appeals were commenced and little more than 

three weeks prior to trial. 

The new Questions Appellants seek to add to their appeals provide 

additional support for restricting their additions to these land use 

appeals. By the Questions under the new title “Other Questions,” 

Appellants seek to challenge applicant’s ability to obtain conditional 

use, site plan and zoning permit approval, due to NEKCA’s alleged failure 

to obtain state licensing for the pre-school, nursery school, day care and 
adult care facility that it has yet to construct. Appellants’ motion to 

amend at p. 3. Appellants also seek to add a further challenge to NEKCA’s 

municipal land use applications by asserting non-conformance with Act 62, 

the state education funding law. Id. NEKCA notes that it cannot obtain 

such state licensing without the opportunity for state licensing officials 

to conduct site visits at the facility. 

In situations where no clear direction is afforded an applicant as 

to which approvals, state or local, should first be obtained, the first 

approval, if awarded, may contain a condition that actual operation must 

await the receipt of all remaining state, local and federal approvals. 

Absent such an option, any development could be stifled, without ever 

obtaining a substantive review of its conformance to applicable land use 

requirements. 

To the extent that this Court has the discretionary authority to 

allow an expansion, at this late date, of the legal issues to be addressed 

in this appeal, we conclude that exercising such discretion now would be 

unwise and unjust. No action that may be taken in these proceedings will 

exempt NEKCA from its obligation to obtain all necessary licenses and 

approvals before it commences operation of its facility. If the facts 

presented at trial justify a conclusion that NEKCA’s proposed project 

conforms to the applicable provisions of the Newport Zoning Bylaws, 

occupancy and operation of the facility can be made conditional upon the 

receipt of all necessary licenses. So as to “ensure summary and expedited 

proceedings consistent with a full and fair determination”1 of the land use 

issues property raised in these Dockets, we will limit our review of the 

pending applications to conformance to the substantive sections of the 

municipal land use regulations. 

___________________________________________ ______________________ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Appellant Paul Curtis 

 Appellant Joan Curtis 

 Appellant George M. Azur II 

 Appellant Shelly Azur 

 Appellant Douglas Jenks 

 Appellant Lois Jenks 

 Appellant Francis L. Ormsbee 

 Appellant Amelia A. Ormsbee 

 Appellant William D. Prue 

 Appellant Debra Prue 

 Appellant Linda Curtis 

 Appellant Clark W. Curtis 

 Appellant Norman Thurston 

 Interested Person John K Hall 

 Interested Person Harriet G. Hall 

 Attorney Charles D. Hickey for Appellee NE Kingdom Comm Action, Corp. 

 Attorney William Boyd Davies for Interested Person City of Newport 

 

1

 Vermont Rules for Environmental Court Proceedings 1.